GREENWAY v. COMMONWEALTH OF VIRGINIA

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
FROM THE COURT OF APPEALS OF VIRGINIA

Present: All the Justices

In a bench trial, Jackie G. Greenway, Jr. was convicted in the
Circuit Court of Prince George County on two counts of
involuntary manslaughter arising out of a fatal motor vehicle
accident. On appeal, Greenway asserts that the trial court erred
in admitting the opinion testimony of a 12?year-old witness
concerning the speed of Greenway’s vehicle immediately prior to
the accident. Greenway further asserts that the evidence was not
sufficient to sustain a finding of criminal negligence necessary
to support his convictions for involuntary manslaughter.

Background

Because the Commonwealth prevailed in the trial court, we will
view the evidence and all reasonable inferences drawn therefrom
in the light most favorable to the Commonwealth. Parks v.
Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert.denied, 450 U.S. 1029 (1981).

At approximately 11:00 a.m. on May 29, 1994, the Sunday of
Memorial Day weekend, Greenway drove a blue Ford Bronco south in
Prince George County on Interstate 95 in heavy traffic. At trial,
Thomas Hawick testified that he observed Greenway "coming up
behind me real fast" in the left southbound lane of the
Interstate. Hawick, who was driving his vehicle at the 65 mile
per hour speed limit, estimated the Bronco’s speed at
"eighty, ninety miles an hour . . . [m]aybe
faster." Hawick believed that Greenway’s vehicle would
strike the rear of his vehicle and so he "mashed on the
gas."

According to Hawick, Greenway then pulled into the right lane
of the Interstate, passed Hawick’s vehicle, and "plowed into
the vehicle in the right lane." This vehicle, a maroon
Bronco, "flipped twice, and then it just shot right into the
woods." Kimberly Dawn Wray, the driver of the maroon Bronco,
died at the scene of the accident; Angela Nicole Yerovsek, a
passenger in the maroon Bronco, died at the Medical College of
Virginia Hospital emergency room where she was transported for
treatment of her injuries. Hawick further testified that
following the collision Greenway then "weaved to the left,
in the left lane, and he went on the shoulder a little bit, then
he got back in the right lane, and then he was going real
fast."

Rhonda Thacker testified that on the morning of the accident
she was stopped for a red light on the Route 301 overpass of
Interstate 95. Justin Thacker, her 12-year-old son, called her
attention to Greenway’s vehicle, saying that it was going to hit
the maroon Bronco. Rhonda Thacker estimated Greenway’s speed at
"a minimum of eighty-five" miles per hour. She further
testified that Greenway’s vehicle "was like in the middle
. . . not in one lane or the other, it was more like in
the middle of the white [line] that divides the two
[lanes]."

Justin Thacker testified that he observed Greenway’s vehicle
as it crossed under the overpass "going pretty fast."
The Commonwealth’s Attorney then asked Justin if he had
"been in cars all [his] life as a passenger." Justin
stated that he had. The Commonwealth’s Attorney then asked Justin
if he knew "how fast or do you have an opinion of how fast
[Greenway's] vehicle was going?" Justin gave a contradictory
answer, stating, "No, sir, I don’t. He was going, say,
ninety."

Greenway’s counsel then objected, asserting that Justin was
incompetent to testify as to the speed of the vehicle. Greenway’s
counsel argued that "a 12-year-old boy, who is not even
eligible and won’t be for four more years to even have a driver’s
license, [could not] estimate speed." The Commonwealth
responded that such evidence was "totally admissible. The
weight it would be given is for the Court to determine." The
trial court ruled that Greenway could "challenge it on
cross" and permitted the Commonwealth to continue its
examination.

In response to a question from the Commonwealth, Justin
confirmed his estimate of Greenway’s speed at ninety miles per
hour. He further testified that Greenway’s vehicle was
"swerving . . . before it got up close to the
[maroon] Bronco it would . . . try to get in that lane
then come back, then go and then come back, and then it just hit
it." On cross-examination, Greenway’s counsel asked Justin
to describe in detail the swerving motion of Greenway’s vehicle,
but did not further question Justin on the issue of speed or the
basis for his estimate of the speed of Greenway’s vehicle.

Additional evidence showed that approximately half a mile from
the accident scene, Greenway’s vehicle left the Interstate,
crossed a gully and service road, entered the front yard of a
private residence, and struck a tree. When interviewed at the
scene, Greenway told police investigating the accident that he
believed he had hit Hawick’s vehicle which "got
squirrly," and when Greenway tried to stop "he must
have hit the accelerator" instead. Although stating that he
was tired and had been awake since 3:30 a.m., Greenway did not
assert at that time that he had fallen asleep while driving.
However, when subsequently interviewed by a State Police trooper
at Southside Regional Hospital, Greenway asserted that he had
struck Hawick’s vehicle after falling asleep while driving.

At the conclusion of the Commonwealth’s evidence, Greenway
made a motion to strike, asserting that the evidence was
consistent with the assertion that Greenway had fallen asleep
while driving. The trial court ruled that "on a primafacie standard" the evidence showed that Greenway was
able to control his vehicle to avoid a collision with Hawick’s
vehicle. Based upon that evidence, the trial court rejected the
theory that Greenway had fallen asleep.

Greenway called only one witness, Robert D. Maclin, who
testified that he saw Greenway’s vehicle go "out to
pass" and strike the maroon Bronco. Although he could not
give an opinion of the speed of Greenway’s vehicle, Maclin stated
that he was travelling fifty-five to sixty miles per hour and did
not remember being passed by Greenway or any other vehicle.

The trial court overruled Greenway’s renewed motion to strike,
holding that Maclin’s testimony failed to "shed any
light" on the question whether Greenway had fallen asleep.
Reviewing the evidence of Greenway’s excessive speed, erratic
driving, his ability to avoid hitting Hawick’s vehicle, and his
flight from the accident scene, the trial court convicted
Greenway of two counts of involuntary manslaughter. After receipt
of a pre-sentence report, the trial court sentenced Greenway to
consecutive seven-year prison terms for the convictions.

Greenway appealed his convictions to the Court of Appeals,
challenging, interalia, the trial court’s
admission of Justin’s testimony concerning Greenway’s speed and
the sufficiency of the evidence to support the finding that
Greenway’s conduct amounted to criminal negligence. In an
unpublished order, the Court of Appeals refused Greenway’s
petition for appeal, holding that Justin’s testimony was properly
admitted under Moore v. Lewis, 201 Va. 522, 525, 111
S.E.2d 788, 790 (1960). The Court further held that the evidence
taken in the light most favorable to the Commonwealth was
adequate to sustain the trial court’s finding of criminal
negligence. King v. Commonwealth, 217 Va. 601, 607, 231
S.E.2d 312, 316 (1977). We awarded Greenway this appeal.

Competency of Child Witness to Testify
Concerning Speed

Our decisions follow the mainstream of authority which holds
that expert knowledge is not required for a witness to be
considered qualified to make an estimate of speed. As we said in Moore:

"An estimate of the speed at which an automobile was
moving at a given time is generally viewed as a matter of
common observation rather than expert opinion, and it is
accordingly well settled that any person of ordinary
experience, ability, and intelligence having the means or
opportunity of observation, whether an expert or nonexpert,
and without proof of further qualification may express an
opinion as to how fast an automobile which came under his
observation was going at a particular time. The fact that the
witness had not owned or operated an automobile does not
preclude him from so testifying. Speed of an automobile is
not a matter of exclusive knowledge or skill, but anyone with
a knowledge of time and distance is a competent witness to
give an estimate; the opportunity and extent of observation
goes to the weight of the testimony." Moore, 201
Va. at 525, 111 S.E.2d at 790 (citations omitted).

However, "[i]n order to be competent to testify on the
subject the witness must have had a reasonable opportunity to
judge the speed of the automobile." Id., 111 S.E.2d
at 791. Accordingly, before any witness, regardless of age or
driving experience, is permitted to offer an opinion concerning
the speed of a vehicle, the record must show both that the
witness has sufficient knowledge of time and distance to
determine speed, and that the witness observed the vehicle in
motion over a period of time and distance adequate to make that
determination. Once these threshold qualifications are
established, the witness’ degree of knowledge and the duration
and quality of the witness’ observations become matters of
credibility, not competence. Thus, in Moore we held that
the testimony of an adult witness who was just learning to drive
and had many years experience of automobile travel as a passenger
"was admissible for such weight as the jury thought it
should have." Id.

We have not previously considered the standard of competency
required for a child witness to offer an opinion as to the speed
of a vehicle. In Meade v. Meade, 206 Va. 823, 147 S.E.2d
171 (1966), we did not reach the question whether a 14-year-old
boy was competent to offer an opinion as to a vehicle’s speed
because the evidence showed that he had not actually seen the
vehicle in motion prior to the accident, but had only heard the
sound of the vehicle. Accordingly, the boy’s lack of a reasonable
opportunity to judge the vehicle’s speed, not his youth, was the
basis for finding his testimony incompetent. Id. at
828-29, 147 S.E.2d at 175.

As a general proposition, however, we have long held that a
child is competent to testify if he or she possesses the capacity
to observe, recollect, communicate events, and intelligently
frame answers to the questions asked of him or her with a
consciousness of a duty to speak the truth. Cross v.
Commonwealth, 195 Va. 62, 64, 77 S.E.2d 447, 449 (1953).
Similarly, we have held that:

The competency of a child as a witness to a great extent
rests in the sound discretion of the trial judge whose
decision will not be disturbed unless the error is manifest.
It is the duty of the trial judge to determine such
competency after a careful examination of the child. In
deciding the question the judge must consider the child’s
age, his intelligence or lack of intelligence, and his sense
of moral and legal responsibility. Hepler v. Hepler,
195 Va. 611, 619, 79 S.E.2d 652, 657 (1954).

In the present case, it was not asserted that the child
witness did not have a reasonable opportunity to observe the
movement of Greenway’s vehicle prior to the accident, or that he
could not truthfully recollect or communicate what he had
observed. To the contrary, the defense relied upon Justin’s
testimony that Greenway’s vehicle was swerving to support its
argument that Greenway had fallen asleep while driving.
Greenway’s only objection was that Justin was not competent to
estimate speed because he was not himself a driver and, thus,
lacked sufficient knowledge of time and distance to form a
reliable estimate of speed.

Prior to eliciting Justin’s estimate of the speed of
Greenway’s vehicle, the Commonwealth’s Attorney only asked Justin
whether he had "been in cars all [his] life as a
passenger." This was the extent to which the Commonwealth
attempted to establish that Justin had sufficient knowledge of
time and distance as these concepts relate to a determination of
the speed of a motor vehicle. When asked whether he knew or had
an opinion as to the vehicle’s speed, Justin stated that he did
not, but then offered an estimate of ninety miles per hour. While
arguably Justin merely intended to say that he could not be sure
of the exact speed, his testimony was at best equivocal as to how
he arrived at his estimate.

Upon this record, we cannot say that the Commonwealth laid a
foundation that Justin had sufficient knowledge of time and
distance to give a reliable estimate of the speed of Greenway’s
vehicle. Accordingly, it was error to admit that evidence. This
error, however, does not require reversal if the error was
harmless.

Improper admission of evidence does not create reversible
error when it is merely cumulative of other competent evidence
properly admitted. Freeman v. Commonwealth, 223 Va. 301,
316, 288 S.E.2d 461, 469 (1982). Contrary to an assertion made
during oral argument on appeal by Greenway’s counsel, Justin’s
testimony was not the sole basis upon which the trial court could
have determined the issue of Greenway’s speed. Hawick testified
that Greenway’s speed was "ninety miles an hour
. . . [m]aybe faster," and Justin’s mother
estimated Greenway’s speed at a minimum of eighty-five miles per
hour. This evidence supports the trial court’s finding that
Greenway was travelling at an "extremely high speed."
Thus, the evidence improperly admitted was merely cumulative and
did not deprive Greenway of a fair trial. See Code ? 8.01-678; Rodriguez
v. Commonwealth, 249 Va. 203, 208, 454 S.E.2d 725, 728
(1995).

Evidence of Criminal Negligence

In King, 217 Va. at 607, 231 S.E.2d at 316, we defined
involuntary manslaughter in the operation of a motor vehicle as
an "accidental killing which, although unintended, is the
proximate result of negligence so gross, wanton, and culpable as
to show a reckless disregard of human life." Under this
definition, involuntary manslaughter in the operation of a motor
vehicle in this Commonwealth "should be predicated solely
upon criminal negligence proximately causing death." Id.

Greenway contends that the Commonwealth’s evidence failed to
establish that he had actual or constructive knowledge that his
actions would place the lives of others in danger, either because
the accident resulted from his falling asleep while driving or
because his negligence was predicated solely upon excessive
speed. We disagree.

The trial court expressly found that the evidence did not
support a finding that Greenway had fallen asleep while driving.
Rather the trial court found that Greenway, though driving
erratically, was making a conscious effort to maneuver his
vehicle through traffic. Since the record supports this finding
of fact, it will be upheld on appeal. Code ? 8.01?680.

Accordingly, we turn to Greenway’s contention that the trial
court’s determination of criminal negligence was improperly
predicated solely upon his driving at an excessive speed.

What distinguishes a speeding violation from the misdemeanor
of reckless driving, and the misdemeanor from the felony of
involuntary manslaughter, is the likelihood of injury to other
users of the highways. And the degree of the hazard posed by a
speeding automobile depends upon the circumstances in each case. Mayo
v. Commonwealth, 218 Va. 644, 648, 238 S.E.2d 831, 833
(1977).

Greenway’s contention is based on the presumption that a speed
of eighty-five to ninety miles per hour on an interstate highway,
while constituting civil negligence, does not rise to the level
of a criminal disregard for the safety of others. The fallacy of
his contention is that it views speed in isolation while ignoring
the attendant circumstances of the accident, of which speed was
merely a factor.

In addition to Greenway’s excessive speed, the evidence showed
that Greenway was weaving through heavy holiday weekend traffic,
straddling the lane markers, that he was aware of a near-miss of
another motor vehicle, and that he continued shifting lanes
abruptly rather than adjusting his speed to the flow of traffic.
Viewed in the context of these circumstances, the evidence
supports the trial court’s finding that Greenway’s actions showed
a reckless disregard for human life constituting criminal
negligence sufficient to support the convictions for involuntary
manslaughter.

For these reasons, we will affirm the judgment of the Court of
Appeals.